IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

C 758/00

Masila

v

Tonga Water Board

Ford J 
30 April, 1, 2 May 2002; 8 July 2002

Employment law – allegations of unlawful employer behaviour – claim dismissed 

The plaintiff brought a claim for unlawful dismissal against his employer the defendant Water Board. He had commenced working for the Board on 5 January 1987. The terms of his employment contract were partly in writing and partly implied. He was employed initially for a probationary period and then in October 1987 he became a permanent member of the Board's staff holding the position of "Technical Officer". It was an implied term of the contract of employment that, provided the plaintiff complied with his contractual obligations, he could have expected to remain in the job until his retirement. The plaintiff also alleged that he was entitled to an annual increment in his salary. The Board admitted that allegation but said that the increment entitlement was subject to satisfactory performance. There were three heads of claim making up the plaintiff's prayer for relief: the alleged unlawful withholding of the plaintiff's annual increments for the 1995/96 and 1996/97 years; his alleged unlawful suspension and subsequent demotion in 1997; and his alleged unlawful suspension and dismissal from the Board in February 1998.

Held:

1. The court found that on the evidence the plaintiff had acquiesced in the introduction of the new assessment method by operating under it from the time of its introduction in the early 1990s. If the plaintiff had wanted to object to the introduction of the twice yearly formalised performance assessment programme then he should have done something about it at the time.

2. The court was satisfied that the plaintiff knew what the performance assessments were all about. The first head of the plaintiff's claim, based on the withholding of the annual increments, failed. 

3. The Court accepted that the Board had an implied power to suspend and it was not persuaded that its conduct in suspending the plaintiff in the way in which it did, amounted to a repudiation of the contract. The claim was therefore rejected. 

4. An employer was not bound by the legal presumption of innocence or the other rules of evidence applicable to judicial proceedings. Nor was it necessary for a misconduct charge to be proved to the high standard required in criminal cases, of proof beyond reasonable doubt. It was sufficient for the employer to be satisfied that it was more likely than not that the employee was guilty of the misconduct charged. The employer's decision should be based on a reasonably founded belief, honestly held. The court was satisfied that the Board acted within the ambit of these principles. 

5. The plaintiff's claim was dismissed. 

Cases considered: 
Helu v Koloa [2000] Tonga LR 299 (CA) 
McLory v Post Office [1992] ICR 758; [1993] 1 All ER 457 
Marriott v Oxford and District Co-operative Society Ltd [1970] 1 QB 186 
Tukuafu v Kingdom of Tonga [1999] Tonga LR 127 (CA) 

Counsel for plaintiff: Mr Tu'utafaiva
Counsel for defendant: Mrs Taumoepeau

Judgment

The plaintiff's claim has had an unfortunate history. It relates to what he alleges was his unlawful dismissal as an employee of the defendant Water Board in February 1998 and other alleged unlawful actions by the Board leading up to that dismissal. The plaintiff originally issued proceedings in June 1998 but the Board responded by applying to strike out the claim. In a judgment dated 28 April 2000, Finnigan J upheld the application and the whole of the claim was struck out upon the grounds that the pleadings were defective and they did not clearly identify the cause of action. His Honour also noted that the plaintiff had filed, out of time, an application for leave to seek judicial review but that application had been withdrawn. Costs on the strike out application were awarded against the plaintiff. The plaintiff then instructed a new lawyer in the matter and the present proceedings were commenced in September 2000, which was still within the five-year limitation period for bringing such claims. 

The plaintiff became an employee of the Tonga Water Board on 5 January 1987. The terms of his employment contract were partly in writing and partly implied. He was employed initially for a probationary period and then in October 1987 he became a permanent member of the Board's staff holding the position of "Technical Officer". It was an implied term of the contract of employment that, provided the plaintiff complied with his contractual obligations, he could have expected to remain in the job until his retirement. There is no dispute about these matters. They are admitted in the pleadings. The plaintiff also alleges that he was entitled to an annual increment in his salary. The Board admitted that allegation but said that the increment entitlement was subject to satisfactory performance. 

There are three heads of claim making up the plaintiff's prayer for relief:

1. The alleged unlawful withholding of the plaintiff's annual increments for the 1995/96 and 1996/97 years. 

2. His alleged unlawful suspension and subsequent demotion in 1997. 

3. His alleged unlawful suspension and dismissal from the Board in February 1998. 

I will deal with each in turn.

1. The withholding of annual increments. 

The Board admitted that the plaintiff's annual increments were withheld for the 1996 and 1997 financial years but denied that the withholding was in breach of contract or unlawful. 

Counsel for the Board submitted that the decision to withhold the increments in each year was based on the plaintiff's job assessments for the periods in question which were well below the acceptable pass mark. Counsel described his performance as a failure'. Going on from there, counsel submitted that there is an implied warranty that a skilled employee is reasonably competent to carry out the work which he is employed to undertake and where there is a breach of such a condition, as the Board alleges was the situation in the present case, the employer is entitled to withhold the annual increment. 

In response, counsel for the plaintiff accepted that there is such an implied warranty of competence and that an employer is not bound to continue employing an incompetent employee but he denied that the plaintiff had been shown to be incompetent. He also denied that the plaintiff had breached his contract through having an assessment performance "well below the acceptable pass mark". 

Counsel criticised the Board's assessment documentation produced at the hearing as being incomplete and he noted that the plaintiff had stated in evidence that he "was not aware of the actual carrying out of the assessments and he failed to see the reasons for the alleged poor performance." 

Counsel for the plaintiff also submitted that, in any event, the increments could not be withheld in the plaintiff's case because it was not a term of his contract when he first started with the Board in 1987 that the increments should be performance-based. Mr Tu'utafaiva submitted that the Board could not subsequently unilaterally introduce such a condition. 

Dealing first with the plaintiff's last submission, I do not accept that it was never part of his contract that the annual increment would be performance-based. I accept that the procedure for assessing performance would have changed since 1987 in that in those days the format would have been less formal and would not have involved the use of the various forms that are used nowadays. I cannot accept, however, the submission advanced by the plaintiff that the annual salary increase would have been granted automatically regardless of performance. The proposition is tantamount to having an employment contract which states that the employee will be entitled to an automatic increase in salary each year regardless of how poorly he or she performs. The evidence produced in this case did not persuade me that the defendant had ever operated under such a policy. 

An unusual feature of the hearing was that the plaintiff subpoenaed Mr Saimone Helu, General Manager of the defendant Water Board, and one other witness from the Board, to give evidence in the case and the defendant did not call any witnesses. Mr Helu said that he started with the Board in January 1995 and the present method of carrying out performance assessments would have been introduced in the early 1990s. When it was suggested to him that prior to then the annual increments were awarded automatically without any regard for performance, he was not prepared to accept the proposition which he described in commercial terms as "very abnormal". 

Plaintiff's counsel referred in his submissions to the evidence of the other witness he called from the Board, Mosese Latu, who had indicated that when he started with the Board in 1992 the increments were a "normal entitlement" but this statement from the witness only emerged in re-examination and it was never the subject of cross-examination. I, therefore, place little weight on it. 

In any event, even if I had been persuaded to accept the plaintiff's submissions on this aspect of the case, I would have held, on the evidence, that the plaintiff had acquiesced in the introduction of the new assessment method by operating under it from the time of its introduction in the early 1990s. If the plaintiff had wanted to object to the introduction of the twice yearly formalised performance assessment programme then he should have done something about it at the time. 

With reference to the other submissions advanced by counsel in relation to the withholding of the annual increments, I do not accept the plaintiff's professed ignorance of the assessment programme. I make the observation that, for a person in the plaintiff's position who has lived with this claim hanging over his head now for a number of years, I found much of his evidence surprisingly vague and disjointed. His evidence in relation to the performance assessments fell into this category. In cross-examination he said that he did not know "the purpose for having performance assessments". I am satisfied that he knew exactly what performance assessments were all about. 

It is true that there appeared to be gaps in some of the assessment paperwork that was produced to the court but much of that seemed to be principally required for the defendant's administrative purposes. I am satisfied that the plaintiff would at least have received each six months the important one-page confidential "Staff Assessment Form" which summarised his performance review. He would have seen, for example, that his assessment form for the period ended 30 June 1995 showed that he had scored only 41.5%. The required pass mark was 70%. The "comment" made for that review was: 

Tololisi's standard of work has been continually poor He has made no effort to improve his work performance and doesn't accept responsibility to complete work assigned. He requires constant supervision to carry out his duties. Due to his poor performance, attitude and lack of effort he is considered unsuitable for further technical training. I recommend that he be redeployed to the plumbing section for possible retraining. " 

Harsh words perhaps, but hardly a sound basis for instigating legal proceedings challenging the employer's entitlement to withhold an annual salary increment. For the foregoing reasons, the first head of the plaintiff's claim, based on the withholding of the annual increments, fails. 

2. The suspension and demotion in 1997. 

The second head of claim relates to the plaintiff's alleged unlawful suspension and demotion in 1997. The allegation is that on 24 February 1997 the plaintiff was suspended for "more than a month" and then on 23 June 1997 he was demoted from Technical Officer Grade 1 to Technical Officer Grade 2. Both actions are claimed to be in breach of contract and, therefore, unlawful. 

The February suspension followed on from the submission of a memorandum from the plaintiff's supervisor, David Salomon, to the Board's General Manager, Mr Helu, about the plaintiff's unsatisfactory work performance. The memo is dated 11 February 1997 and reads as follows: 

"Re Complaint of Poor Work Performance -- Fololisi Masila. 

I would like to bring your attention to the continued poor work performance of Technical Officer, Fololisi Masila. Since returning from leave in December 1996 he has not effectively contributed to the work of the Engineering Section and is setting a poor example to my other staff and disrupting their work. Recently, when asked by my senior Technical Officer, Quddus Fielea, to help the Chief Accountant and Chief Distribution Officer to investigate the continued decrease in water sales, he refused to assist. Other work given to him is normally never completed unless continually pushed and then always at unsatisfactory pace. 

These acts of subordination (sic) are not isolated events, ever since I commenced work with the T W B it has been a continual battle to get any satisfactory work out of Fololisi, as is highlighted in his poor work appraisal performance reports. Acts of subordination cannot be tolerated and should be disciplined. 

Submitted for your consideration. 

David Salomon." 

Although there was little evidence led in relation to this head of claim, it appears that the defendant Board met on 21 February and resolved to suspend the plaintiff for insubordination. A copy of the complaint was sent to the plaintiff and he was invited to respond within 14 days. He did so in a lengthy letter dated 5 March 1997. He denied the charges and proffered various explanations for the alleged problems. He did admit to some shortcomings but concluded by restating that he would make an effort to try and attain the goals set in relation to his work. One interesting comment in his letter, which I suspect may have been the cause of some of the problems he had experienced in his employment, was a reference to his involvement in rugby. He said:

"At the same time I have lots of overseas travel in representing the country in international matches, Triangle competitions, World Cup and also local matches." 

The court was told that the plaintiff played for the Tonga national rugby team between 1989 and 1998. The court was also told about certain concessions for training purposes which the defendant Board allowed employees who represented the Kingdom in any national sport. 

The outcome of the suspension and the investigation was a Board decision on 18 April 1997 that the plaintiff be reinstated, reprimanded strongly for insubordination and warned that any repetition would render him liable for dismissal. He was paid for the period of his suspension. 

At its meeting on 20 June 1997, the Board noted that the plaintiff's performance assessment for the financial year ending that month was again unsatisfactory. The plaintiff was given a further warning and he was officially demoted from Technical Officer Grade 2, effective from 1 July 1997 with a reduced salary. The plaintiff told the court that he wrote a letter of complaint about the demotion to the General Manager and he ended up having a meeting with Mr Helu but he said that he was told that if he was not satisfied with the proposal then he should leave. The plaintiff said that he told Mr Helu that he would carry on working at the reduced grading but he told the court that he felt "shameful" and he alleged that the defendant's actions were in breach of contract. He, therefore, seeks damages for emotional suffering. 

The plaintiff did not particularise in his pleadings the basis for his allegation that the defendant's actions were in breach of contract. In their submissions, rather surprisingly, no reference was made by either counsel to any of the exhibits or other evidence before the court or to any legal authorities relating to this head of claim. Counsel were, therefore, invited to file additional submissions and the court is obliged to them for their helpful responses. At the end of the day it is, of course, for the plaintiff to establish his case and, as with any civil action, the standard of proof is on the balance of probabilities. 

Whether or not an employer has power to suspend an employee in any given case depends upon the construction of the particular contract. At common law an employer is not lawfully entitled to suspend an employee without pay unless the contract contains such a power. The English courts have been prepared to imply a power of suspension as a term in an employment contract provided that the power is exercised on reasonable grounds and that the period of suspension continues no longer than is reasonably necessary -- McLory v Post Office [1992] ICR 758; [1993] 1 All ER 457. 

That principle has also been applied in the Kingdom. In Helu v Koloa [2000] Tonga LR 299, the Court of Appeal agreed with the primary judge's conclusions that, even though the employment contract contained no express power to suspend, the action of the Water Board in that case, in suspending the employee and suspending his salary pending an investigation, was reasonable and it did, not amount to a repudiation of the employment contract. 

Applying that same principle in the present case, I accept that the Board had an implied power to suspend and I have not been persuaded that its conduct in suspending the plaintiff in the way in which it did, amounted to a repudiation of the contract. The claim under this head is, therefore, rejected. 

The plaintiff's demotion in grading and reduction in salary in June 1997, which forms the other part of his claim under this head, was a Board decision conveyed to the plaintiff by Mr Helu in interoffice memoranda dated 23 June and 7 July 1997. The decision was: 

"That Fololisi Masila, Technical Officer Grade 1 be demoted to the post of Technical Officer Grade II, level 6/7 with the salary scale of minimum $4,984 -maximum $6,862 per anum, and to commence at the minimum of the salary scale effective from 1st July 1997." 

The plaintiff told the court that he protested the decision and made it clear to Mr Helu that he was dissatisfied, but he decided to carry on working on the new terms rather than resign. 

A similar situation was considered by the English Court of Appeal in Marriott v Oxford and District Co-operative Society Ltd [1970] 1 QB 186. Referring to the employer's decision in that case to reduce the employee's wages and status, Lord Denning MR said: 

"The question is whether the letter … was an offer by the employer to Mr Marriott or a dictation to him of the terms on which he was to work. On the whole I think it was not an offer. It gave him no option. It told him downright that in five days time his pay was to be reduced … he was not to be a foreman. He was to be a supervisor … He (Marriott) never agreed to the dictated terms. He protested against them. He submitted to them because he did not want to be out of employment. By insisting on new terms to which he never agreed, the employer did, I think, terminate the old contract of employment." 

As in Marriott, the decision of the Board in the present case evinced a clear intention that it would no longer be bound by the employment contract it had with the plaintiff. The Board's actions in this regard, in my view, amounted to a repudiation of the contract. It is fundamental that any variation to an employment contract requires the genuine consent of the parties. Where an employer repudiates the contract in such a way then the employee is put to his election of either agreeing to the new terms or accepting the employer's repudiation and suing for breach of contract. 

Counsel for the defendant submitted, in her reply, that the plaintiff had consented to the new terms of employment. I agree with that submission. The plaintiff's own evidence was that after expressing his initial dissatisfaction with the proposal, he told Mr Helu that he would agree to continue working on the new terms. In any event, I would have held, on the facts of this case, that there was an implied consensual variation by the plaintiff's conduct in continuing to work at the reduced status and salary. 

I, therefore, reject this part of the plaintiff's claim. 

3. The suspension and dismissal. 

The final head of the plaintiff's claim relates to his suspension and dismissal from the Board's employment in February 1998. The suspension followed on from a "behavioural misconduct" complaint by a female staff member, 'Uila Pakofe. The complaint was categorised by the Board under the rubric "sexual harassment'. I have already held that the Board had an implied power of suspension pending the carrying out of an investigation. 

The period of suspension in this case was reasonable and I, therefore, reject this head of the plaintiff's claim. I turn to consider the claim relating to the dismissal. 

The plaintiff alleges that his dismissal on 27 February 1998 was in breach of contract and unlawful because, (1) there were no proper grounds for the dismissal and (2) the plaintiff acted unreasonably because, as it was summarised by counsel for the defendant in her submissions: 

"(a) letters written by other employees were not given to the plaintiff for his comments. 

(b) the defendant did not take statements from people referred to by the plaintiff in his replies. 

(c) the information before the defendant (was) in favour of the plaintiff but the defendant nevertheless decided against the plaintiff. 

(d) the defendant took into account records of the plaintiff with the defendant but without advising the plaintiff." 

In answer to these allegations, defence counsel submitted that the defendant in its investigation of the complaint acted reasonably and followed "natural justice". She referred again to natural justice in the conclusion to her submissions where she cited an extract from the Court of Appeal decision in Tukuafu v Kingdom of Tonga [1999] Tonga LR 127 (CA). That case related to the suspension of a school student. It did not involve an employment situation. 

Although the plaintiff did not respond directly to the submissions made on the natural justice point, I would not be prepared to imply a condition that the rules of natural justice should apply to the employment contract in this case. As Neuberger J. said in the McLory case (p 463): 

"I do not consider it right to import the rules of natural justice, which are connected with judicial decisions and some administrative decisions, into the purely contractual relationship of employer and employee." 

The point is again reinforced in the following passage from Chitty on Contracts, 26 ed, p.3980: 

"The more recent view has been that a person employed under a contract of employment cannot invoke public law remedies (natural justice) to complain of his dismissal even if his employment is of a public nature, though an officer or office-holder who does not have a contract of employment may be able to do so." 

I do accept defence counsel's other submission, however, that the reasonableness or otherwise of the Board's actions is a relevant factor. In this regard I propose to adopt the approach followed by Finnigan J., which was implicitly approved of by the Court of Appeal in the Helu v Koloa case, where His Honour held that there should be implied into a contract of employment, similar to the one in this case, the following terms: 

"1. That the Board (the Tonga Water Board) would exercise any right it had to dismiss in a reasonable manner, and 

2. That neither party would act in a way that undermined the trust of the other." 

The letter setting out the complaint in the present case was dated 6 February 1998. It was signed by the plaintiff's supervisor David Salomon, as acting manager of the Board. The letter, as translated, reads as follows: 

"re Allegation against Fololisi Masila for sexual harassment on Vila Pakofe. 

On 29 January 1998 a complaint was received against you alleging that you rendered behavioural misconduct on one Vila Pakofe as follows: 

1. You touched 'Uila Pakofa at the frontal region of her thigh on 26 January 1998 on or between 12 -- 12:30 in front of the Board's storeroom at Nuku'alofa. 

2. You touched 'Uila Pakofa on her buttocks on 29 January 1998 on or between 10 -- 11 am at the Board's tea room at Nuku'alofa. 

To sexually harass any person is prohibited by the Board's code of conduct. Such behaviour can cause unnecessary fear and horror in the hearts of workers, not to mention the deprivation of individual rights, or, and the customs. 

You are advised to lodge a letter to exculpate yourself against the above allegations and to be received by the acting manager before for 4:30pm February 1998. The Board's final decision will now rest on your letter. 

You are not allowed to come to work and if you have in your possession any of the Board's equipments (sic) then, please return them forthwith once you receive this letter. 

I hope to be hearing from you soon. 

Malo. Sgd. David Salomon." 

The plaintiff responded to the allegations. He wrote two letters dated 9 and 19 February. The first letter is confusing. He does not refer specifically to the two incidents but he denies the allegations and says that the accusation of sexual harassment is false. He talks about the punishment for sexual harassment in the Magistrates' Court. He suggests that the sexual harassment claim would have come from "Lesieli Niu". 

In the second letter, which was considerably longer than the first, the plaintiff referred to the two incidents. He said that on 27 January he joked about 'Uila's beauty and he put up his hand as though he was going to touch her but she moved away and he did not touch her. In relation to the incident in the tea room on 29 January, the plaintiff gave his account of what happened. He admitted to his "right hand palm laying lightly on her back outside her uniform". 

The Board received statements from three witnesses. I do not propose to set them out in full but some of the relevant extracts, as translated, are as follows: 

Kanitesi Fifita, a plumber with the Board:

"… In fact I saw the incident but I wasn't sure whether they were just playing or it was a mere molestation. 

The girl was furious and it was only then that I was under the impression that what happened to her was behavioural misconduct …" 

Lesieli Niu: 

"… I was standing beside the boiler and having my cup filled when I heard someone jumping up and shouting and swearing swear words at Fololisi Masila. I interrogated her as to what had happened and 'Uila protested that Fololisi touched her buttocks. I asked Fololisi how could he do such a thing and he replied saying, "her beauty is just irresistible …" 

Sione Finau: 

"Before lunch 'Uila Pakofe came up to me crying and she looked very disappointed. She told me she couldn't stand the unethical behaviour done to her by one Fololisi Masila. According to 'Uila, Folofisi had touched her against her will …" 

After completing its investigation, the Board resolved on 27 February that the plaintiff be dismissed for behavioural misconduct of sexually harassing 'Uila Pakofe, with effect from 6 February 1998. The plaintiff subsequently appealed to the Board and requested it to reconsider the dismissal decision but the Board resolved on 2 April that the dismissal would stand. 

The court was told that the complainant, 'Uila Pakofe, left the Board some three years ago. She is now married, living in Australia. 

Turning now to the four particulars of unreasonable conduct relied upon in the statement of claim, I find that they can be disposed of relatively briefly. First, the plaintiff claims that he was not given a copy of the statements from the witnesses. Although that was his evidence, I am afraid that I have not been persuaded, on the balance of probabilities, that it is a correct statement of the position. Although the plaintiff said that he had not been given copies of the statements, the evidence of the Board's General Manager under cross-examination was that the witnesses' statements had been made available to the plaintiff and all the other correct procedural steps had been followed. Because of the unusual procedure that had been adopted, with the General Manager of the defendant Board being subpoenaed as a witness for the plaintiff, plaintiff's counsel did not have the opportunity to cross-examine on these matters. Nevertheless, I found Mr Helu to be an impressive witness. He gave his evidence in a thoughtful and considered manner and I have no reason to doubt his credibility. In any event, even if the witnesses' statements had not been made available, I would have held that it was not necessary for this to happen. The letter which the plaintiff had received detailing the complaints had made it very clear what the allegations were that he was facing. 

The second particular in the statement of claim alleges that the defendant did not take statements from witnesses referred to by the Mr Masila in his replies. 

A written statement was taken from Lesieli Nui, who was one of the people named. It does not appear that written statements were obtained from the other named individuals but Mr Helu said that the investigation also involved verbal inquiries. The people named by the plaintiff are not described in his letter as "witnesses". The reference to the individuals in the tea room, for example, simply states that they had already been served their cups of coffee. It says nothing more than that. If the plaintiff really believed that any of these people could have something helpful to contribute to the investigation then there was nothing to stop him approaching them himself for support. Certainly, there is no evidence before the court that even suggests that there was a potential witness available who could have contributed relevant information to the inquiry helpful to the plaintiff had he or she been interviewed. 

I do not find that the Board acted unreasonably in relation to this aspect of its investigation. 

The third particular in the statement of claim is that the Board in its decision-making process ignored information that was favourable to the plaintiff. It appears from counsel's closing submissions that the "information in favour of the plaintiff" which is referred to in this particular is the original complaint from Ms Pakofe, the two letters of explanation from the plaintiff to which I have already referred, and the written statements from the three witnesses to which I have also referred. I find it somewhat surprising that all of these documents are described by counsel as being "in favour of the plaintiff". 

The evidence on the matter is, nevertheless, clear. All this documentation was fully considered by the Board in reaching its decision. 

The final particular in the statement of claim is that, in reaching its decision, the Board took into account other records of the plaintiff apart from matters relating to the complaint, without advising the plaintiff or giving him an opportunity to reply. 

In responding to this allegation, counsel for the defendant drew the court's attention to the unchallenged evidence of the defendant's General Manager in which he specifically denied that any other records had been taken into account in the Board's consideration of the plaintiff's case. She submitted that there was simply no evidence before the court to prove this allegation. 

I agree with that submission. The ground has not been established. 

That disposes of the various allegations made in the pleaded particulars in the statement of claim. Plaintiff's counsel, in his submissions in reply, however, appears to seek to introduce, for the first time, additional new particulars which had not been pleaded. If these matters were considered significant then the appropriate course was to seek leave to amend the statement of claim so as to have them included. In this way, the defendant's counsel could have dealt with them in her principal submissions. 

Be that as it may, I have, nevertheless, taken into account the new submissions presented by counsel but I do not consider that they advance the plaintiff's case. One of the main points he makes is that the wording of Ms Pakofe's complaint is not as specific as the allegations set out in Mr Salomon's letter to the plaintiff. That is correct. The complainant, in her letter to the manager of the Board dated 29 January 1998, spoke about being extremely annoyed by the "unethical conduct done to her" by Fololisi in repeatedly caressing her against her will more than three times. She said that she had begged him "not to practise such unscrupulous behaviour" on her, but to no avail. She spoke about being fearful and terrified. She did not mention in her letter precisely when, where and how the incidents had taken place. The fact that Mr Salomon had been able to particularise these matters in his letter to the plaintiff dated 6 February 1998 confirms Mr Helu's evidence to the court that Mr Salomon would have made verbal inquiries of the complainant and other witnesses in his investigation of the complaint. Mr Salomon did not give evidence. The court was told that he no longer lives in the Kingdom. 

I must admit to having some difficulty with this submission. I could understand the plaintiff's concern if particulars of date, time and place had not been provided but he can hardly allege, in the light of the letter he received from Mr Salomon, that he had not been given a clear statement of the allegations made against him and I fail to see how it can even be suggested that the defendant has acted unreasonably in relation to this aspect of the investigation. 

Counsel for the plaintiff also submitted that by asking the plaintiff in the letter informing him of the complaint to "exculpate" himself against the allegations, the defendant had taken the unreasonable view that it was for the plaintiff to prove his innocence instead of the complainant having to prove her complaints. 

An employer is not bound by the legal presumption of innocence or the other rules of evidence applicable to judicial proceedings. Nor is it necessary for a misconduct charge to be proved to the high standard required in criminal cases, of proof beyond reasonable doubt. It is sufficient for the employer to be satisfied in his own mind that it is more likely than not that the employee is guilty of the misconduct charged. The employer's decision should be based on a reasonably founded belief, honestly held. I am satisfied that in the present case, the Board acted within the ambit of these principles. 

The claim is dismissed with costs to the defendant to be agreed or taxed.